Naduvannur Regional Co-operative Bank Ltd. v. Kavunthara Service Co-Operative Bank Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** ## **WA NO. 240 OF 2022** **AGAINST THE JUDGMENT IN WP(C) NO.26191/2019 DATED 03.02.2022 OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT IN W.P.(C)NO.26191/2019:** **THE NADUVANNUR REGIONAL CO-OPERATIVE BANK LTD.NO. F 1269 NADUVANNUR, KOZHIKODE 673 614, REPRESENTED BY ITS SECRETARY** **BY ADV P.P.JACOB** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN W.P.** **(C)26191/2019:** - **1 THE KAVUNTHARA SERVICE CO-OPERATIVE BANK LTD NO. D 3205,** - **SAFA BUILDING PALLIYATHKUNI, KAVL. P.O., NADUVANNUR, KOZHIKODE 673 614 REPRESENTED BY ITS SECRETARY** - **2 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),** - **KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES (G), PUTHIYARA, KOZHIKODE - 673 004** Writ Appeal No.240 of 2022 2 **4 THE LIQUIDATOR/KOYILANDY UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (G0 KOYILANDY-673 001, KOZHIKODE DISTRICT.** **BY ADV M.SASINDRAN V.K.SUNIL,SR.GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Writ Appeal No.240 of 2022 **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.240 of 2022 -----------------------------------------------** ## **Dated this the 2[nd] day of March, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 03.02.2022 in W.P.(C) No.26191 of 2019. The appellant was the fourth respondent in the writ petition. 2. On 01.11.2003, Naduvannur Service Co-operative Bank (the Society), a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 (the Act) was ordered to be wound up by the competent authority, and a liquidator was appointed for the said purpose. Later, on the basis of the decision of the general body of the Society, the concerned Joint Registrar of Co-operative societies ordered amalgamation of the assets and liabilities of the Society with the appellant society. Ext.P5 is the order issued by the Joint Registrar in this regard on 28.06.2018. On coming to know of Ext.P5 order of the Joint Registrar, the first respondent, another society preferred 4 Writ Appeal No.240 of 2022 Ext.P6 representation before the Government on 05.08.2018 seeking orders for transfer of the assets and liabilities of the Society with them. Ext.P6 representation was forwarded by the Government to the Joint Registrar, and in terms of Ext.P8 order, the Joint Registrar has turned down the request of the first respondent taking the stand that Ext.P5 order was one issued in the light of the judgment of this court in W.P.(C) No.10667 of 2009. Ext.P8 order was under challenge in the writ petition. 3. The learned Single Judge took the view that Ext.P5 order of the Joint Registrar being one appealable before the Government in terms of Section 83 of the Act, it should have been dealt with by the Government itself and consequently disposed of the writ petition directing the Government to treat Ext.P6 representation as an appeal and dispose of the same on merits with notice to all concerned, notwithstanding Ext.P8 order. The appellant is aggrieved by the said decision of the learned Single Judge and hence this appeal. 4. Heard the learned counsel for the appellant, the learned Government Pleader as also the learned counsel for Writ Appeal No.240 of 2022 5 the first respondent, the writ petitioner. 5. The learned counsel for the appellant submitted that the Society was ordered to be wound up as early as on 05.09.2003 and the said order has become final. It was pointed out that if at all anybody was aggrieved by the said order, he ought have preferred an appeal against the said order in terms of Section 83(1)(f) of the Act within 60 days from the date of the order. It was argued by the learned counsel that the learned Single Judge has permitted the first respondent to challenge the said order which has become final after almost 18 years. According to the learned counsel, when the scheme of the statute is that orders of that nature should become final after 60 days, the learned Single Judge ought not have issued such a direction in exercise of the power under Article 226 of the Constitution. It was also argued by the learned counsel that at any rate, insofar as the Government does not have any power under the Act to condone the delay in filing an appeal under Section 83 of the Act, the learned Single Judge ought not have held that Ext.P6 representation preferred by the first 6 Writ Appeal No.240 of 2022 respondent several years after the order of winding up is liable to be treated as an appeal. The learned counsel has relied on the decision of this court in **Calicut City Service Cooperative Bank Ltd. v. State of Kerala,** 2008 (3) KLT 1011, in support of the said contention. It was also argued by the learned counsel that Ext.P6 is only a representation submitted by the first respondent, and in the light of the decision of this court in **Sivakumar v. Sreekumar,** 2002 (1) KLT 354, this court ought not have directed the Government to treat a representation as an appeal under Section 83 of the Act. 6. Per contra, the learned counsel for the first respondent pointed out that the grievance voiced by the first respondent in Ext.P6 representation is against Ext.P5 order of the Joint Registrar directing amalgamation of the assets and liabilities of the Society with the appellant society and their grievance is not against the order of winding up of the Society. It was pointed out that Ext.P5 order is wrongly referred to in the impugned judgment as the order of winding up of the Society. According to the learned counsel, the essence of the judgment Writ Appeal No.240 of 2022 7 impugned in the appeal is that insofar as an appeal is provided against the order in the nature of Ext.P5 in terms of Section 83 of the Act, it was inappropriate for the Government to forward Ext.P6 representation to the Joint Registrar and it was inappropriate for the Joint Registrar to dispose of the same. According to the learned counsel, the impugned judgment does not therefore call for any interference. 7. We have considered the arguments advanced by the learned counsel for the parties on either side. 8. A close reading of Ext.P6 representation would indicate beyond doubt that the grievance voiced by the first respondent in Ext.P6 representation is against Ext.P5 order of the Joint Registrar. It is the said representation that was forwarded by the Government for consideration by the Joint Registrar and it is the request made by the first respondent in the said representation that was turned down by the Joint Registrar as per Ext.P8 order. As noted, the writ petition is one instituted challenging Ext.P8 order. The learned counsel for the first respondent, in the circumstances, is right in submitting 8 Writ Appeal No.240 of 2022 that the essence of the judgment is that insofar as an appeal is provided against the order in the nature of Ext.P5 under Section 83 of the Act, it was inappropriate for the Government to forward Ext.P6 representation to the Joint Registrar and it was inappropriate for the Joint Registrar to dispose of the same. True, it is stated by the learned Single Judge in the impugned judgment that a winding up order is appealable before the Government under Section 83(1)(f) of the Act. The said statement is certainly a mistake and the appellant cannot take advantage of the same. Insofar as what was directed by the learned Single Judge in the impugned judgment was only to treat Ext.P6 representation preferred by the first respondent before the Government against Ext.P5 order within the time prescribed for preferring an appeal under Section 83(1)(j) of the Act, as an appeal under Section 83(1)(j) of the Act, the contention raised by the learned counsel for the appellant based on the decision of this court in **Calicut City Service Cooperative Bank Ltd.** is unsustainable. In **Sivakumar** , this court held that the Government cannot reopen a statutory 9 Writ Appeal No.240 of 2022 appellate order on the basis of a representation filed by a person who claims himself aggrieved by it. In the instant case, as noted, the learned Single Judge has only directed to treat a representation against an order before an authority, as an appeal before the very same authority. The decision in **Sivakumar** cannot have any application to the facts of the present case. That apart, insofar as the learned Single Judge has left open the contentions of the parties to be dealt with by the Government, we do not find any reason for the appellant to be aggrieved by the impugned decision. The writ appeal, in the circumstances, is without merits and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** Mn